When you visit a medical professional due to an illness or an injury, you expect proper diagnosis and care to make you feel better. You expect the best treatment by believing in the doctor’s expertise and years of experience. In Florida, a patient has a right to an acceptable and appropriate standard of care. The patient’s medical condition and age defines the method of treatment, care, and skill needed to render services that would be reasonable in a similar health facility.
Medical malpractice takes place when a hospital, doctor or a medical professional is negligent. This action of negligence is a result of a violation of the acceptable and appropriate standards of care. The result causes injury to the patient. If you sustain an injury due to medical malpractice, you can contact the Clay County Personal Injury Attorney to help you in filing a medical malpractice claim.
Types of Medical Malpractice
There are many types of medical malpractices. The multifaceted healthcare system provides for numerous opportunities where a medical professional can make a life-altering mistake on his or her patients.
A patient may experience medical malpractice through various situations like a dentist appointment, emergency room situation, a routine health check-up or a surgical procedure. Below are some of the categories for medical malpractice claims.
When you go to a medical facility, the first thing the medical professional will get is your diagnosis. A correct diagnosis is critical in providing proper medical care to a patient. If the diagnosis is faulty, due to existing medical conditions or a case where the symptoms are not apparent, the patient will not receive the proper care and treatment and the outcome will be poor.
Some common types of misdiagnosis are:
- Failure to recognize the symptoms an Imminent Heart Attack
- Misdiagnosing stroke
- Failure to recognize DVT and pulmonary embolism
- Misdiagnosing diabetes
- Misdiagnosing meningitis
- Failure to realize the symptoms of appendicitis
If a medical expert makes a diagnostic error, he or she may be held liable for damages and injuries experienced by the patient.
Delayed diagnosis is a type of medical malpractice if another medical professional would have done a proper diagnosis in a timely fashion under the same conditions. A patient can experience unnecessary injury or pain if there is a case of a delayed diagnosis.
Some of the more serious examples of delayed diagnosis are Untimely Diagnosis of Coronary Artery Disease, heart attack, stroke, cancer, appendicitis and or delayed diagnosis of an internal trauma Injury.
Failure to give a diagnosis in a timely manner can cause more harm and undue injury to the patient, the medical professional can be sued for medical malpractice.
All surgeries have an element of risk. Before going for a surgical procedure, a patient signs an informed consent form of that particular surgical procedure. Surgical medical malpractice consists of preventable mistakes that go beyond the known risks.
If medical malpractice arises during surgery profound effects like further surgeries, organ damage, failure of the immune system, infections and sepsis, and even death might happen to a patient. Surgical procedures should be done by highly skilled medical professionals and mistakes should be avoided at all costs.
Some the surgical errors that can be as a result of medical malpractice range from unintentional organ damage, surgery on the wrong site, too much blood loss, organ perforation or a foreign object being left in a patient’s body.
Unintentional organ or laceration damage is one of the most dangerous risks that can occur during a surgical procedure. It is possible for an organ or a vessel to be perforated and go unnoticed. Over time, bile can leak to the body cavity and lead to infections and sepsis which can cause septic shock and even death.
Surgery on the wrong site can be as a result of an error in the hospital records or miscommunication. This leads to a surgeon operating on the wrong organ. In the worst case scenario of wrong-site surgery, a surgeon amputates a patient’s arm or leg only to find out they amputated the wrong one. This leads to a patient losing both appendages rather than just one.
In the case of a surgical error where a foreign object was left in a patient, it might go unnoticed for a long time before its effects begin to be evident. Usually, this requires further surgery to remove the foreign object. In worst cases, a patient might undergo agonizing pain, infections and may die from septic shock.
Unnecessary surgery can also result in a medical malpractice claim if the surgical procedure is related to a misdiagnosis or an oversight by the medical professional without proper consideration of risks and options. The actions leading to unnecessary surgery can result in medical malpractice if there any damages from the procedure.
Anesthesia is a risky part of any surgical procedure. It requires a specialist to administer and monitor effects on a patient. Before any procedure that requires anesthesia, an anesthesiologist will go through the patient’s medical history, previous lines of treatment and allergies to know the best drug combinations to use. Anesthesia medical malpractice can occur during the pre-op medical review or during the procedure itself.
Anesthesia malpractice can occur if the anesthesiologist does not review keenly the patient’s medical records. This can result in administering drugs that can cause allergic reactions or cause injury to a patient. Alternatively, due to previous medications, a particular anesthetic agent may cause a higher risk of complication and may cause a patient’s death.
Medical Malpractice During Childbirth
Childbirth can be a difficult event for the newborn child if not handled appropriately by a medical professional. Medical malpractice during childbirth can take place in several ways like, not performing a c-section, mishandling a difficult birth, induced labor complications, failure to realize a medical condition or monitor the vital signs of the newborn.
A cesarean section is performed to preserve the health of the baby in case of fetal distress. If a medical professional does not perform a c-section in time this may result in injury to the newborn.
During a difficult birth, medical professionals may use methods to force the extraction of the baby. A combination of forceps and suction can be used. The risks associated with forced extraction can result in permanent injuries like nerve damage.
Sometimes, a medical professional may want to speed up the delivery or cesarean section by inducing labor. The drug used might cause side effects if not monitored properly. If fetal distress is detected or a case of a prolapsed umbilical cord discovered, induction should be stopped and a c-section be performed on the mother.
Medical negligence during childbirth can often result in the need for lifelong medical care, which can cost several million dollars.
Proving a Medical Malpractice Claim
To make a medical malpractice claim, you must be able to prove fault. If the patient understands his/her rights and has the knowledge of the doctor’s duties, then they can be able to find out who was at fault and be able to prove it legally.
You must also prove the existence of a doctor/patient relationship. This means that you procured services from a medical professional/ doctor and they agreed to offer the services.
The patient must also prove that they have an injury due to the doctor’s negligence. Since the patient is already ill or injured while visiting the medical professional, the doctor’s actions have to be probed to find out if they caused the injury.
Lastly, the injury must have caused harm. This does not include being unhappy with a treatment process. Some of the harm the patient can sue for include physical pain, mental anguish, additional medical bills, loss of wages and loss of working ability.
What are Florida Medical Malpractice Damages?
Damages are the monies that a plaintiff can try to win in a medical malpractice case. There a set limits of the amount of money which is supposed to compensate the injured patient for medical costs, loss of work or loss of wages, and pain and suffering.
Florida has a limitation on medical malpractice damages that are available to plaintiffs or patients. The caps only apply to "non-economic" and punitive damages while no limits to "economic" damages.
Medical malpractice laws in Florida enacts different caps for damages against “non-practitioner” defendant than damages against “practitioner”. Practitioner includes all medical professionals and registered nurses including all business entities, employees, associations firms and partnerships a practitioner is in. Lower limitations are imposed on damages that are as a result of emergency services and care.
Here are common categories of medical malpractice damage chapters against practitioners in Florida:
General limitations: Non-economic damages should not go beyond 500,000 dollars for each plaintiff; practitioner defendants should also not be subjected to over 500,000 dollars. Non-economic damages compensate pain and suffering experienced by an injured patient. The total cap amount for non-economic damages should not go beyond $1 million for both the plaintiff and practitioner defendant.
Tragic injury and serious non-economic damage: If the plaintiff has severe damages and the injury is catastrophic, the total amount of damages recoverable should not go beyond $1 million.
Medical malpractice damage limit on Emergency care and services: Non-economic damages should not go beyond 150,000 dollars per plaintiff and the total recoverable amount should not go beyond 300,000 dollars from all practitioners.
Non-Economic damages arising from care and services to Medicaid recipient: The damages should not go beyond $300,000 per plaintiff. Each practitioner is not liable for amounts exceeding $200,000 for providing care to a Medicaid recipient unless there is evidence that the practitioner acted wrongfully.
In case of a medical malpractice results to a plaintiff’s death or a permanent vegetative state, the $1million cap was rendered unconstitutional by Florida Supreme court.
Medical Malpractice Defenses
Doctors we trust should always make us feel better when we are ill or injured. If by any chance they create more harm and injuries, they should be held accountable for their actions.
Here are some defenses available for the medical professionals who have been sued for malpractice.
No negligence defense
This involves proving that no negligence occurred and all care standards were upheld. The care standards set for a patient with a particular medical condition are acceptable and recognized across various health facilities. If the medical professional rendered proper treatment, care and used proper skill to handle the patient with no errors, they can disapprove the negligence element.
Contributory negligence defense
Sometimes, the injuries on the patient, may not be caused by a medical professional. The patient’s injuries would be as a result of negligent acts. A patient may have mixed prescriptions or have omitted medical condition in their history. In this case, the medical professional can be off the hook for the injuries.
Respectable minority principle
Medical professional may decide on a new or more radical treatment method to treat a patient. While the treatment method may not be on the mainstream, the medical professional can have a valid defense if a respectable minority medical professional supports the method of treatment. The patient must also be aware of the potential risks too.
Good Samaritan defense
Good Samaritan laws exist to legally protect individuals who aid persons in an emergency situation. Medical professionals who follow the standards of care are in the category of protected individuals should anything go wrong.
The statute of limitations defense
Different states have different time limits on when a patient can seek legal action for medical malpractice. In Florida, the statute of limitations is two years from when a patient sees an injury or discovers an injury occurred as a result of a medical malpractice. If a medical professional proves that two years have elapsed since the patient discovered the injury, the case might be tossed.
Florida Statutes of Limitations
In Florida law, the Statute of limitation for medical malpractice is found under Florida Statutes Section 95.11(4)(b). The statute of limitations is two years from when the patient knew or should have known that an injury occurred and that it was likely due to medical malpractice.
The statute of repose
Florida has a rule called the statute of repose which states that healthcare professionals may not be sued after four years of the malpractice incidence unless the situations are justifiable. The plaintiff must realize that he or he is a victim of medical malpractice within the four years to claim the damages. Exceptions exist where there are cases of where misrepresentation of facts, fraud, concealment, or cover-up was done by the medical professional. On this basis, the injured patient may still file a suit after the statute of repose expiration to up to seven years.
Special statute of repose for children
The special statute of repose for children states that the statute of repose described above will not stop from filing a claim before the child’s eighth birthday. However, if the child’s guardian or parents knew about the injury and it was caused by medical malpractice, the two-year statute of limitations will cut off the claim.
A special advance notice and time requirements are given to a defendant if it involves state agency or military/veterans administration hospital.
Filing a Medical Malpractice Lawsuit
To file a medical malpractice suit, you will need to meet Jurisdictional and expert requirements. Pre-suit filings vary in complexity from one state to another.
First, you need to consult an attorney
For a medical malpractice suit, you will need professional assistance from an experienced attorney. If you realize you have an injury as a result of medical malpractice, you will need an attorney because of the reasons below.
The attorney needs to check whether your case is within the Florida statute of limitations and file the suit before the time expires. You have to meet pre-suit requirements and procedures before filing your case. Sworn statements from medical experts, notices of intent to file a suit, review boards are some of the items legal personnel will assist you in, in procession to filing your suit.
Find a lawyer that has experience in the medical malpractice area to ensure successful filing of your lawsuit.
Obtain copies of your medical records from your healthcare provider
In any medical malpractice case, your medical records are your major piece of evidence. Immediately you believe you have a case, request a copy of your medical records from your healthcare provider. To allow third party access to your medical records, sign a release form to conform to the privacy laws.
After getting a copy of your medical records, deliver a copy to your attorney to enable them to look in your case. From your medical records, your attorney will know which experts to contact to get opinions and other professionals you might end up as your expert witnesses. After the attorney combs through your medical records, they will be able to advise on whether to go ahead to filing your suit if it qualifies and your chances of success.
Notify appropriate insurance companies and/or facilities
If you already have an attorney on retainer, they will notify the healthcare facilities and insurance providers of your intent to sue. More likely aster notifying hospitals or health care professionals, they will inform their insurance companies and might offer settlement for your claim before filing the suit. Assistance from a legal professional is instrumental at this point to make it professional and handle the situation with grace.
Comply with any pre-Suit requirements
It is important you follow procedures and meet the pre-suit requirement to avoid case dismissal. The formal pre-suit requirements for a medical malpractice case aim at simplifying the legal process, sieve out not so strong cases and encourage settlement. You need expert legal assistance to comply with the pre-suit requirements, failure to that you risk case dismissal on procedural grounds.
File the medical malpractice complaint
Finally, you can file the medical malpractice case and your attorney will do the actual drafting and complaint filing. The complaint is a proper presentation of the allegations against the defendant.
Florida Medical Malpractice Frequently Asked Questions
What actions can lead to medical malpractice?
Medical malpractice can result from different actions by a healthcare professional. The actions must lead to an injury or harm to the patient. The patient must be able to prove that the medical professional failed to render services as expected under acceptable medical care standards.
A doctor might be found negligent if they fail to diagnose or misdiagnose, not follow acceptable medical care standards, not warn the patient of risks involved in a procedure, unnecessary surgery, improper dosage, ignoring test results, and surgical errors.
To file a medical malpractice claim, a doctor-patient relationship must be proved and injuries from the treatment process must be linked to that relationship.
What is an action for medical malpractice according to Florida Law?
An “action for medical malpractice” is a claim for damages resulting in an injury, monetary loss, or death that arises out of treatment, dental, diagnosis, or any medical care.
How long will my Florida medical malpractice case take?
The length of time a Florida medical malpractice will take is influenced by a number of factors. One factor is the hefty funds required to get expert witnesses to decipher medical evidence provided and attorneys with experience and knowledge in medical malpractice to assess your case. Lawsuits of this kind are time and money consuming.
Another factor is the time taken to deal with the legal team from the Florida malpractice insurance carrier. The insurance carrier provides the healthcare professional with malpractice insurance. These companies have legal teams who are highly experienced and knowledgeable, thus, fighting your claim vigorously.
You have to be patient for your Florida malpractice case because it might take months or years to conclude.